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Decision No. 14,019

Application of THE BOARD OF EDUCATION OF THE ARDSLEY UNION FREE SCHOOL DISTRICT from action of Joan Aracich, in resigning her teaching position.

Decision No. 14,019

(September 16, 1998)

Jaspan, Schlesinger, Silverman & Hoffman, LLP, attorneys for petitioner, Lawrence J. Tenenbaum and Jay S. Hellman, Esqs., of counsel

James R. Sandner, Esq., attorney for respondent, John J. Naun, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks an order revoking the teaching certificate held by respondent because of her resignation in alleged violation of Education Law "3019-a. The application must be denied.

Joan Aracich ("respondent") has been a certified teacher since 1978. In May 1996, she accepted a position as an art teacher in petitioner's district, and on May 29, 1996, was appointed to a two-year probationary appointment, effective September 1, 1996, through August 31, 1998. After teaching in petitioner's district during the 1996-1997 school year, she personally delivered a letter of immediate resignation, undated, which was received in petitioner's superintendent's office on August 29, 1997.

Petitioner claims that the resignation came only two business days prior to the opening of school in September 1997, and that it was unable to find a certified teacher to take respondent's place until October 20, 1997. Petitioner seeks revocation of respondent's teaching certificate pursuant to Education Law "3019-a.

Respondent's answer admits the basic facts, and attaches an affidavit explaining the personal circumstances which brought about her resignation. Her answer also sets forth numerous affirmative defenses, including untimeliness, petitioner's failure to serve a notice of petition upon her, a claim that petitioner accepted her resignation without reservation by board action on September 11, 1997, and petitioner's failure to authorize this appeal prior to its commencement.

The petition in this appeal was verified on October 31, 1997. The petition, without a notice of petition as required by 8 NYCRR "275.11, was originally served on respondent on November 3, 1997. After consulting with my Office of Counsel, petitioner's attorney then caused a second service to be made on respondent on November 15, 1997. According to the affidavit of service later filed, both a petition and a notice of petition were served on November 15. However, respondent contests the accuracy of the affidavit of service, swears that she was not served with a notice of petition on November 15, and swears that she has never been served with a notice of petition in this matter. Petitioner's reply, executed by its superintendent, claims that a notice of petition was served on the second occasion, but is obviously made without personal knowledge. No affidavit of the process server who allegedly made the November 15 service has been presented.

The appeal must be dismissed as untimely. Petitioner concedes that service was not made within 30 days of the date of petitioner's resignation, but claims that it was in contact with personnel of the State Education Department, and did not receive a final letter advising that an appeal was necessary until October 7, 1997. It claims that it then commenced this appeal within 30 days of receipt of that letter.

Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be initiated within 30 days of the decision or action complained of, but the Commissioner may excuse a failure to timely commence for good cause shown. "The reasons for such failure shall be set forth in the petition." Although the regulation requires that good cause for delay be shown in the petition, that was not done here. Only in petitioner's reply is its correspondence with the State Education Department revealed. This is not a sufficient reason for delay. As stated in Appeal of O'Brien (33 Ed Dept Rep 35, at p.37):

In his reply petitioner indicates, for the first time, that he wrote to this Department in February 1992, complaining of the decision to terminate his services. Since the regulation requires that the cause for delay be alleged in the petition, and petitioner offered the explanation for his delay for the first time in his reply, I find his appeal untimely (Appeal of Board of Education, Poughkeepsie City School District, 32 Ed Dept Rep 315). Moreover, I have reviewed petitioner's February 1992 letter and conclude that it did not serve to initiate an appeal in accordance with the Regulations of the Commissioner of Education.

I also find that the appeal must be dismissed based upon the failure of petitioner to serve a notice of petition on respondent. In order to make a person a party to an appeal, that person must be named as a respondent, served with the petition and notice of petition, and afforded a genuine opportunity to respond. It is the notice of petition which alerts a party that he or she is required to appear in the appeal and answer the allegations contained in the petition (Appeal of Chechek, 37 Ed Dept Rep 624; Appeal of Osterman, 30 id. 290). Where jurisdiction depends on personal service of a paper, a proper affidavit of a process server attesting to such delivery is ordinarily sufficient to support a finding of jurisdiction. However, where there is a sworn denial of service by the party allegedly served, the affidavit of the process server is rebutted and jurisdiction must be established by further evidence. The burden of proving service and the resulting existence of jurisdiction is always on the party asserting it (Matter of Griffin v. Griffin, 215 AD2d 386; Skyline Agency, Inc., v. Coppotelli, Inc., 117 AD2d 135; Bernardo v. Barrett, 87 AD2d 832, aff'd 57 NY2d 1006). Petitioner has not carried that burden in this instance.

In view of this disposition, I will not review the parties' remaining contentions.